Ordered that the order is reversed insofar as appealed from, on the law, the plaintiff's motion for summary judgment on the complaint is denied and the defendant's cross motion for summary judgment dismissing the complaint is granted; and it is further,
Ordered that the cross appeal is dismissed as academic in light of our determination on the appeal; and it is further,
Ordered that one bill of costs is awarded to the defendant.
Anthony Matteo was...
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